All about water rights and adjudications

Archive for August, 2009

An unusual approach to pricing water rights: Paying for a domestic right by the number of square feet in the house.

The town of Avon, Colorado, is considering just that. As the Vail Daily explained on August 29, “The town would charge an extra $1.40 for every square foot over 3,000 square feet the home spans. For example, a builder would pay an additional $4,200 for water rights for a 6,000-square-foot home. Those fees are on top of existing water tap fees.”

The larger houses – larger than originally expected when planning in the region was first undertaken – were thought likely to use more water. Some researchers figured that Avon would have to spend more money on basic water resources (possibly $.5 million) if now-planned development is undertaken.

Is the Hawaii water law developed over the last few decades threatening to kill off some of the oldest businesses, notably sugar plantations, on Maui?

That question apparently underlies significant parts of the new 210-page report and finding by Lawrence Miike for the state Commission on Water Resource Management. It certainly appears to conclude that there’s no longer enough water on Maui for everyone to continue on doing what they have been doing historically.

In practical terms, Miike said the area’s water picture had developed along a clear track: Continue Reading »

The long-running lawsuit dating to 2001 over water at the Lummi Indian Reservation isn’t formally over, since some elements are still in dispute by a few parties. But an August 28 report in the Bellingham (WA) Herald suggests that the terms of a 2007 settlement have settled in a generally firm common practice.

The settlement gives property owners who are not members of the tribe a guaranteed supply of water, about 300 gallons a day for homeowners – enough, many of them said. The tribe originally had pursued the case out of concern that non-tribal members might be drawing too much water.

A legal challenge by one group of non-tribal members was rejected in June by the 9th Circuit Court of Appeals.

A trial court in Texas has held that the state’s rule of capture for water rights lets owners of water rights sell those rights separately from the land. That position is crucial to businessman T. Boone Pickens and to the city of Amarillo and the Canadian River Municipal Water Authority , al of which have accumulated vast reserves of water under that principle.

The case has been appealed to the Texas Supreme Court. In August, Pickens and the other parties filed in opposition to the appeal and support of the lower court. [see Lubbuck (TX) Avalanche Journal]

If land is seized by a government as part of an eminent domain action, what about the water rights attached to the land – and how are they compensated for?

That has turned into a key question in the legal case concerning property which had been owned by 7KX Investment, in Bell County, Texas (in the Temple area). The land sits atop the Edwards Aquifer, and active wells from the property tapped into it. Two parcels from that property (which did not include the wells) were taken by the state for public purchases, but a dispute arose over the state’s proposed price of under $400,000: The owners said that wasn’t enough to compensate for lost water rights.

Hydro geologist Richard Thornhill and the law firm Dawson, Sodd, Ellis & Hodge worked on the case for the owners, and concluded that the land purchased by the state would deprive the owners of significant water access – cutting into their water rights.

The Las Vegas Sun has out today an extensive overview of the battle between Las Vegas water interests, spearheaded by the Souther Nevada Water Authority, and resident of eastern Nevada, where some of the targeted water is located.

The article was spun around an August 20 hearing on the most recent pipeline proposal. It said that:

Facing scores of angry eastern Nevadans saying their way of life was being placed in jeopardy, the water authority’s board of directors instructed its staff on Thursday to continue working on permits to build a 300-plus-mile pipeline so water from the Great Basin can be drawn south.

The vote and the four-hour hearing that accompanied it were unnecessary. But it was a public demonstration that the water authority’s general manager, Pat Mulroy, had gathered a formidable posse — one with the political clout and financial backing to counter the mounting opposition to her proposed pipeline from White Pine County.

Colorado has had eight groundwater districts, all of them located on the eastern plains, since the last of them was established in 1987. In August, the Colorado Groundwater Commission was handed a request to name a new one.
The new district, which would be named for Upper Spring Creek, would be located in Larimer County, which includes Fort Collins. It would be the first Front Range groundwater district. It would run from the border with Wyoming about 6.5 miles south.

The request came specifically from the Northern Colorado Water Association, which provides water for about 4,000 people in an area north of Fort Collins and west of Interstate 25.

Designation of a groundwater district is not necessary to obtain water; the association pumps groundwater to serve its customers’ needs already. But because the groundwater use has the potential to impact the use of water by more senior Platte River water right holders, that pumping is at some risk. Formation of the district would strengthen their legal position.

The petition for formation of the district says that the Upper Spring Creek Designated Water Basin argues that “there is little, if any, evidence of decreed surface rights diverting water which may be attributed to ground water within the Proposed Basin. Within the Proposed Basin there is only one surface right currently in use. This right is a spring (the “Windy Acres Spring”) which is fed by discharge from a bedrock formation, water from which is not part of the Proposed Basin.”

It said that “total average annual net recharge to the alluvial aquifer within the proposed basin is approximately 900 acre-feet, which equates the amount available for withdrawal without creating a ground water mining condition.”

Georgia pushed in two directions in August aiming for a resolution – in its favor – of its long-running water battles with Alabama and Florida.

Those efforts have had increased urgency since July 17, when U.S. District Judge Paul Magnuson (sitting in Minnesota) delivered a ruling which threatens to cost Georgia much of the water its relies on for the Atlanta metro area. Lake Lanier, a water body in Georgia, for decades has been a source of water for metro Atlanta but also for parts of Alabama and Florida—it feeds rivers which run through those states—and the three states have battled for years over the diversions. The water has been diverted by the U.S. Army Corps of Engineers. Alabama filed a federal lawsuit over the matter in 1990, and Florida subsequently joined. Magnuson said that if by the summer of 2012 no tri-state agreement has been reached, or congressional action taken, then a large part of the Lake Lanier water will have to sent downstream.

Since then, Georgia has been moving on both the negotiation and congressional fronts.

On August 17, members of the Georgia congressional delegation met with Governor Sonny Perdue to consider their options. Representative Sanford Bishop was quoted as saying, “It’s a very, very politically sensitive type of issue. And we’ve got to handle it very, very carefully to make sure that we do no harm to other states who are similarly situated.”

In this case, Georgia is in the position of being an upstream, headwaters state, which – depending on how legislation is crafted – could give with some alliance with other headwaters states, as such Colorado, Minnesota or Montana. But that could also align it against downstream states, which tend to be both larger and more numerous.

Members of the delegation also pointed out the political need of trying to develop legislation that could win support from the Alabama and Florida delegations, which could be crucial since members of Congress often are unwilling to tak sides in regional disputes.

On the other front, Perdue has asked Michael Garrett, president of Georgia Power, to serve as the state’s top negotiator. Garrett said on August 20 that he was hopeful an agreement can be reached at least with Alabama, and possibly a second dispute with Florida (concerning the Chattahoochee River) might be resolved separately.

The press announcement from Idaho Governor C.L. “Butch” Otter about his new appointment to the state Court of Appeals somehow managed to leave out the most significant aspect of it: The new appointee, 5th District Judge John Melanson, is also presiding judge of the Snake River Basin Adjudication.

That’s not a disqualifier, of course; and on the merits, Melanson is a solid choice. His work on the adjudication has been even-handed and steady.

Which leads to, more or less, the matter of: The next judge will be the fifth to preside over the SRBA. So far, Idaho has experienced something of a miracle that the adjudication has progressed as smoothly and as (yes) quickly as it has. Will this continue until judge number five?

That person, presumably, will be chosen by the Idaho Supreme Court. Thus far, all presiding judges have come from the ranks of 5th district judges. In this case, one of them (Barry Wood), who happens to have been a former SRBA judge, is effectively disqualified for the same reason he was removed from the case: His brother in law, Daniel Eismann, is on the Supreme Court.

The Tennessee Valley Authority in August decided to kill a program allowing for trade not in water use but in access to water along the Watts Bar Reservoir, located in Roane County.

Tennessee is a riparian state, so that property owners along the reservoir generally have access rights to the reservoir along their property. The TVA set up a program allowing those property owners to trade access rights.

However, the Knoxville News-Sentinel reported in 2008 that questions had arisen about a trade involving a group of developers who were closely tied to a member of Congress, Health Shuler, of North Carolina. No legal or ethical violations were alleged, but concerns about conflicts of interest were raised.

Water rights and water wars: They’re not just a western movie any more. As states grow and water supplies don’t the western states continue in their struggles to find enough water to meet the ever growing needs. A favorite Mark Twain quote (it may or may not have actually been his) in the west has been, “Whiskey’s for drinking; water’s for fighting.” Today he could just as easily have been referring to the drought-ridden eastern states where water conflicts are becoming commonplace and eastern water users are looking to the west for ideas on handling an issue that a decade ago they never thought to be addressing. The Water Gates reviews water supplies, uses and rights to use water in all 50 states.242 pages, available from Ridenbaugh Press, $15.95

The Snake River Basin Adjudication is one of the largest water adjudications the United States has ever seen, and it may be the most successful. Here's how it happened, from the pages of the SRBA Digest, for 16 years the independent source on the massive case - advances, slips, false starts and unexpected leaps.